Winston & Strawn: Labor News July 2012

Labor & Employment Practice at Winston & Strawn

Select events and news from the world of organized labor for July 2012

Organizing
Strikes & Labor Disputes
Major Contract Settlements & Negotiations
Administrative, Court & Other Decisions
Legislation & Politics
Miscellaneous
Upcoming Events
Recent Publications

Organizing

Members of a proposed bargaining unit at Compass Group at Senate dining facilities in Washington, D.C., voted 72-37 against representation by Workers United, an affiliate of the Service Employees International Union (“SEIU”).
1,200 flight attendants at Pinnacle Airlines, Colgan Air, and former Mesaba Aviation voted 643-524 for representation by the Association of Flight Attendants (“AFA”)-CWA over the United Steelworkers. Pinnacle Airlines, based in Memphis, Tenn., is the parent company of Colgan and Mesaba, and is currently restructuring under Chapter 11 in the U.S. Bankruptcy Court for the Southern District of New York.

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Strikes & Labor Disputes

New York Gov. Andrew Cuomo (Dem.) helped broker an end to a 26-day lockout of 8,500 Consolidated Edison Co. of New York Inc. union workers. Con Ed locked out the employees represented by Utility Workers Union of America Local 1-2 after the parties reached an impasse over issues concerning future pension benefits, as well as issues regarding wages, sick time, medical benefits, and disability concessions. The terms are not yet public.
700 employees represented by New England Health Care Employees Union, District 1199, SEIU employed at five nursing homes in Connecticut struck in response to HealthBridge Management’s unilateral alteration of benefits. The previous labor agreement expired in March 2011, and the parties have been unable to reach an agreement on a new contract.
200 SEIU Local 1-represented Houston janitors, working in commercial office buildings, struck to protest alleged harassment and changes in health care benefits. The strike could affect 3,400-SEIU represented janitors as it spreads to Minneapolis, Seattle, Boston, Washington D.C., San Ramon, Calif., Oakland, Los Angeles, and Denver under “conscience clauses” permitting solidarity strikes.
United Airlines and Continental Airlines pilots voted to authorize a strike in response to joint contract negotiations that have been ongoing for two years following the two airlines’ merger, resulting in United Continental Holdings Inc. If the National Mediation Board (“NMB”) finds that further negotiations are useless, it can then release the parties from negotiation obligation and the pilots could strike.
San Francisco superior court employees, represented by SEIU Local 1021, struck for one day for the purpose of demanding financial transparency in response to a five percent pay cut. The Administrative Office of the Courts (“AOC”) also announced in June that it was going to lay off 29 employees. A recently passed California budget bill cut $540 million to the trial court system, including $50 million across all California state courts and $15 million from the AOC’s budget.
UNITE HERE, AFL-CIO, National Football League Players Association, National Organization of Women, Center for Community Change, Feminist Majority Foundation, Rabbinic Cabinet of the Jewish Labor Community, Franciscan Action Network, and National Black Justice Coalition are some of many groups worldwide that are boycotting union-free Hyatt Hotels Corp. in 20 cities as part of a long-running effort by UNITE HERE to pressure Hyatt to voluntarily recognize the union.
AFL-CIO President Richard L. Trumka announced the beginning of a nationwide effort to end a nearly one-year lockout of 1,300 workers at five American Crystal Sugar processing plants in Minnesota, North Dakota, and Iowa. The employees are represented by the Bakery, Confectionery, Tobacco Workers and Grain Millers union. American Crystal locked out its workers one day after union members rejected a contract offer providing a 14 percent wage hike over five years, plus a $2,000 signing bonus. The proposed contract also included changes to health insurance benefits that would require increased employee contributions, as well as granting the Company authority to subcontract work. The union later rejected a revamped proposal providing for a phase-in of health care changes, and terms that no current employees would be affected by the contracting out language.

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Major Contract Settlements & Negotiations

Delta Airlines and the Air Line Pilots Association ratified a three-year contract covering 12,000 pilots. The contract increases pay by a total of 18.5 percent through 2015, starting with an immediate four percent increase, followed by an 8.5 percent increase and three percent increases in subsequent years. The contract also includes productivity enhancements, a modified pilot profit-sharing program whereby the current 15 percent profit sharing is reduced to 10 percent on the first $2.5 billion but would continue to be paid at 20 percent on profits over $2.5 billion, an extended voluntary early retirement program, and a 1 percent increase to pilots’ retirement plans.
Members of the Communications Workers of America (“CWA”) ratified a four-and-a-half year agreement with Piedmont Airlines, based out of Tempe, Ariz. The agreement provides workers with a six to eight percent signing bonus, increases annual wages by four percent, raises wage caps by 25 cents per hour, provides $500 longevity bonuses to employees there more than five years, limits health care cost increases to one percent per year starting in 2015, and provides annual lump-sum payments of two percent starting 2013.
Members of the National Nurses Organizing Committee-Missouri ratified a three-year contract with the Research Medical Center. The contract creates a professional practice committee run by elected nurses, a policy modifying nurse-to-patient staffing levels based on acuity that is enforced by a committee of nurses and management, wage increases from 10-22 percent determined by years of experience, and an additional step for nurses with greater than 16 years experience.
Members of the SEIU-United Healthcare Workers West ratified a four-year contract covering approximately 14,000 California employees with Dignity Health. The contract goes into affect May 2013 and provides a two percent wage increase, step wage increases for eligible employees, health benefits and pensions, and creates an expedited grievance procedure and a wellness program.
United Farm Workers and California tomato farming company Pacific Triple E entered into a three-year contract covering 800 workers. The contract provides tomato pickers with $8.50/hour minimum wage, the option of additional compensation based on piece rate, an increased piece rate of $1.05-$1.18 for every two buckets of picked tomatoes and increases of two cents and one cent in the second and third years of the contract, respectively. The contract also provides a three percent increase in the minimum wage in the second and third years of the contract. Workers who take buckets and dump them in trailers receive a pay increase of $70 to 80 per day to $106, and a pay increase of three percent in the second and third years of the contract.
Montana’s United Food and Commercial Workers (“UFCW”) Local 4 and Local 8 ratified over 52 contracts with grocers, including Albertsons, Safeway Inc., Van’s Thriftway, and IGA Inc., as well as smaller stores. The 41-month contract covers 1,700 workers in 40 stores in Montana and increases wages by 25 cents per hour, increases bonuses, maintains pension benefits, and increases employees’ contributions to health insurance by $10 and $20 for individual and family plans, respectively.
AT&T Inc. and International Brotherhood of Electrical Workers (“IBEW”) agreed to extend their existing contract, covering 7,000 workers mostly in Illinois and Indiana, for one year without any modifications. A previous proposal was rejected that increased wages, provided a signing bonus, increased employees’ health care premiums, provided a moratorium on workforce surplus or layoffs, and perpetuated no-strike and no-lock-out terms.
AT&T and CWA reached a tentative agreement that would cover 13,000 workers in the Midwest, including 5,700 technician representatives. The three-year contract provides an eight percent wage increase, an increase pension plan multiplier by three percent, an increase in employee contribution to health care to 23.5 percent, workers’ rights to transfer, flexible scheduling, and seniority.
The Utility Workers Union of America Local 369 ratified a contract with Entergy Corp, owner of Pilgrim Nuclear Power Station. The four-year contract comes after two rejected offers and ends a month-long lockout. It provides wage increases, benefits, health care, 401(k) matching, a pension plan, and a union incentive plan.
The Alliance of Motion Picture and Television Producers and members of the International Alliance of Theatrical Stage Employees approved a new three-year contract covering more than 38,000 members. The contract provides two percent wage increases annually, increased employer contribution to health coverage, as well as employee contribution to health coverage.
American Airlines and the Transport Workers Union reached tentative agreements for maintenance, mechanics, and other ground workers. The agreements extend six years and include a three percent wage increase for maintenance and related workers and 3.5 percent for store workers, increased health coverage, and market readjustment. Union members will vote on the tentative agreement prior to the U.S. Bankruptcy Court for the Southern District of New York’s anticipated ruling on American Airlines’ requested rejection of all standing labor agreements.
Members of UFCW Locals 5, 8, and 648 and Save Mart supermarkets reached a tentative contract covering 173 Save Mart and Lucky stores in northern and central California and 11,000 workers. The agreement keeps affordable healthcare and secures hours for full-time positions.
The UFCW Local 400 ratified an agreement with Shoppers Food Warehouse Corp., owned by SUPERVALU. The two-year contract covers approximately 2,500 employees in the Washington D.C. area, including front-end, meat, deli, and produce workers. The contract increases wages by 15 to 25 cents an hour in increments of five cents applied based position, and increases bonuses. It also keeps employees’ contribution to health care premiums at $5, $10, $15, or $25 per week for individual, couples, family, and those hired before 2004, respectively. Further, the contract maintains pension benefits and increases employer’s contribution to pension benefits.
Continental Airlines and the AFA ratified a new contact covering about 10,000 flight attendants. The contract provides $1,500 signing bonuses, profit-sharing opportunities, furlough protection, flexibility regarding terms of check-ins, sick leave, and assignments. It also establishes a labor-management partnership that requires the company and union members to meet every month to resolve issues.
The SEIU Local 32BJ ratified a contract with Admiral Security Services, Inc., AlliedBarton Security Services, and Securitas Security Services USA Inc., covering 1,700 private security officers, in Washington, D.C. and extending four years. The contract provides three percent wage increases each year and an immediate 40 cents per hour increase, and maintains employer-paid health benefits.
United Auto Workers (“UAW”) Local 3303 ratified a contract with AK Steel Corporation’s Butler Works extending four years and covering 1,250 maintenance employees in Pennsylvania. The new agreement reportedly continues to provide a competitive and flexible labor contract. The current contract does not expire until September 30, 2012.
American Eagle reached a tentative labor agreement with the AFA covering about 1,750 American Eagle flight attendants, which reportedly will not cut pay or freeze wages. Provisions of the tentative contract will be disclosed, if approved by the AFA’s executive council, prior to the membership’s ratification vote. American Eagle management and the AFA had been negotiating an agreement for months, following parent company AMR Corp.’s, filing for Chapter 11 bankruptcy protection, rather than being subject to imposition of contract terms by the bankruptcy court. American Eagle management and the carrier's pilots, represented by the Air Line Pilots Association, are still in contract negotiations.
Members of Transport Workers (“TWU”) Union Local 721 ratified an eight-and-a-half year first contract with Caesars Palace. The contract covers more than 500 dealers at the Las Vegas casino. The agreement comes five years after Caesars Palace dealers voted for representation by TWU, for continuation of employer-paid health care, other workplace protections, as well as a grievance and arbitration procedure, protection through a progressive discipline and discharge policy, secure health benefits, and recall rights for laid-off workers. Caesars dealers will continue to be paid the hourly statutory minimum wage, and the Caesars contract does not introduce a tip-sharing policy, such as that covering Wynn dealers (the one other labor contract in Las Vegas covering dealers also represented by the TWU). The contract, however, does leave the door open for negotiations to include a tip-sharing policy.
A BNA analysis of collective bargaining data for all settlements YTD through July 23 showed an average first-year wage increase of 1.7 percent, compared with 1.4 percent in the comparable period of 2011. The median first-year wage increase for settlements reported to date in 2012 was two percent and the weighted average of 2.3 percent, compared with one percent and 1.3 percent, respectively, in 2011. When lump-sum payments were factored into wage calculations, the all-settlements average first-year increase to date in 2012 was 2.1 percent; the comparable period in 2011 reported a 1.7 percent increase.

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Administrative, Court & Other Decisions

The Court of Appeals for the District of Columbia enforced an National Labor Relations Board ruling that Atrium of Princeton LLC (operator of a nursing home in New Jersey) violated its duty to bargain with SEIU 1199 New Jersey Health Care Union by unilaterally changing its health insurance plan following a break in a good-faith impasse in negotiations. Negotiations for a successor labor contract stalled over health benefits costs—the union proposed that Atrium contribute 22.33 percent gross payroll contribution to the benefit fund, up from the previous 13 percent, to the Greater New York Benefit fund that provided union employee health benefits. Subsequently, trustees of the benefit fund cancelled health insurance to Atrium union workers. The appellate court found that the cancellation broke an impasse in negotiations because it indicated to the union that Atrium would not accept the union’s proposal for increased benefit contributions, and that the union was not responsible for the health insurance cancellation because Atrium did not show that the benefit fund was an agent of the union. Atrium of Princeton LLC v. NLRB.
The NMB held that the Railway Labor Act (“RLA”) did not apply to the Air Serv Corp.’s shuttle bus service at LaGuardia Airport. NMB determined that Air Serv did not satisfy a two-part RLA jurisdiction test because the LaGuardia Airport Airline Managers Council did not have sufficient control over Air Serv employees. In other cases, the NMB has determined that Air Serv operations do fall under the RLA, such as at the Memphis International Airport. In that case, the NMB found that FedEx exercised sufficient control over Air Serv operations by scheduling workers’ shifts, recommending discipline and termination, retaining hiring authority, governing grooming standards, and providing free office space and equipment. The NMB reconciled these decisions by stating that it determines this issue on a case-by-case basis, taking into consideration contracts and practices. Air Serv Corp.
NLRB Administrative Law Judge Margaret G. Brakebusch held that General Electric Co.’s subsidiary Advanced Services Inc.’s alternative dispute resolution policy, requiring employees to bring only individual claims although allowing class claims if both the worker and the company agreed, violated the National Labor Relations Act. Following Board precedent in D.R. Horton Inc., the ALJ determined that the policy did not clarify circumstances that would trigger the class waiver and so there were no explicit circumstances under which ASI would abandon the class waiver clause, causing a chilling effect and violating the NLRA. The ALJ further held that the arbitration policy’s confidentiality provision could be read to prevent employees from discussing provisions of their employment. Advanced Services Inc.
The U.S. District Court for the District of Oregon granted the NLRB’s petition for a 10-day temporary restraining order blocking longshoremen, in a union dispute regarding jurisdiction over two jobs, from engaging in work slowdowns that have negatively impacted the Port of Portland. The dispute centered between the IBEW and the International Longshore & Warehouse Union, the former contending that the disputed work falls under the terms of its contract with the port and the latter contending that the jobs are under its contract with the Pacific Maritime Association. The parties reached an interim agreement wherein ILWU members will perform the disputed work until a NLRB decision comes down. Despite the TRO, a slowdown occurred on July 4, which was resolved in an arbitration hearing in which ILWU members were directed to work at a normal rate. The federal court did not hold the longshoremen’s union in contempt for the alleged TRO violation resulting from the slow down. Hooks v. Int’l Longshore & Warehouse Union.
The NLRB held that a no-access policy—limiting off-duty hospital employees’ access to the hospital—violated the NLRA. Sodexo America LLC and USC University Hospital posted and enforced, respectively, the no-access policy that prohibited off-duty employees’ access to the hospital except to visit patients, obtain medical treatment, or to handle hospital business. In evaluating the policy, the NLRB applied Tri-County Medical Center, 222 NLRB 1089 (1976), which held that an employer can only bar off-duty employees from accessing a facility if it: (1) only limits the access to the interior, (2) is clearly circulated to all employees, and (3) does not restrict access solely for union activity. The NLRB determined the policy violated the NLRA because it did not allow off-duty employees access to the hospital to engage in union activity but permitted the employer to allow access to the hospital for any other purpose. The NLRB clarified, however, that a hospital does not violate Tri-County by allowing off-duty employees on the premises as members of the public seeking health care. Ultimately, the NLRB remanded the matter to the ALJ to determine if the discipline employees were subject to for violation of the no-access policy implicated NLRA Section 7 violations. Sodexo Am. LLC.
The U.S. Court of Appeals for the Tenth Circuit enforced an NLRB order that Teamsters Local 523 committed an unfair labor practice when it demanded that Interstate Bakeries Corp. place an employee at the bottom of a seniority list based on his lack of prior membership in the union. Additionally, the circuit court sanctioned the union for bringing the substantially same dispute to the Tenth Circuit a second time. The NLRB’s two-member panel's first ruling found that Interstate Bakeries violated the NLRA when it agreed to put its long-standing employee, but new member of the Local, at the bottom of the seniority list. Following the Tenth Circuit’s affirmation of the NLRB’s decision, IBT Local 523 petitioned to U.S. Supreme Court for review under New Process Steel LP v. NLRB, which held that an NLRB panel of less than three members lacked the authority of the five-seat NLRB. The Supreme Court remanded to the Tenth Circuit based on New Process Steel, at which time the Tenth Circuit vacated its judgment and remanded to the NLRB. After a second review, a three-member NLRB panel held again that IBT’s actions violated the NLRA. IBT petitioned again to the Tenth Circuit for review. The Tenth Circuit found the second NLRB order and appeal substantially the same as the first, and sanctioned IBT Local 523 for a frivolous appeal, noting that it was not frivolous to put the case before the NLRB a second time, but only that it was frivolous to bring virtually the same decision to the Tenth Circuit a second time. NLRB v. Teamsters Local Union No. 523.
The Wisconsin Supreme Court rejected a petition for a rehearing on the legitimacy of a Wisconsin law that limits the collective bargaining rights of public employees. The Dane County District Attorney petitioned the Wisconsin Supreme Court to vacate its 4-3 ruling that upheld the Wisconsin law on the grounds that one of the justices in the majority should have recused himself from the case due to a personal conflict. The petition also sought to preclude the justice from any further proceedings relating to the case. The court denied the recusal petition in a 3-3 decision, the conservative three finding that the challenged justice did not act improperly by determining that he could act impartially because under Wisconsin Statutes Section 757.19(2)(g), a judge’s subjective self-evaluation regarding recusal is proper and the court does not remove justices involuntarily. The liberal dissent asserted that the majority opinion lacked analysis regarding the recusal decision and raised the question of whether a fair trial exists and if due process is violated where a challenged judge goes forward with the case, citing Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009). Ozanne v. Fitzgerald.
The NLRB held that Evenflow Transportation Inc.’s layoffs, following union-organizing activity by Local 713, International Brotherhood of Trade Unions, were carried out to depress labor union support in violation of the NLRA. The NLRB held that the timing of the layoff created an inference of animus toward union supporters and anti-union comments and threats made by a company manager indicated that the company had basic knowledge of the union’s activities. Evenflow Transp. Inc.
The NLRB issued a complaint against Hyatt Hotels Corp. alleging that its common at-will policy language in its employee handbook acknowledgment form was overbroad and constituted an unfair labor practice. Specifically, the form stated that the company’s at-will policy could only be altered by written agreement signed by company executives and employees. Hyatt Hotels settled, eliminating any formal ruling. This follows a similar claim handled by an ALJ in Arizona against the American Red Cross challenging the organization’s at-will employment disclaimer. The at-will employment language at issue in both Arizona cases is used nationwide. NLRB v. Hyatt Hotel Corp.; NLRB v. American Red Cross. See Winston & Strawn LLP client briefing on this issue.
The NLRB held that California Nurses Association, National Nurses Organizing Committee violated its duty to bargain with California’s Henry Mayo Newhall Memorial hospital by adding language to a collective bargaining agreement that was not part of contract negotiations and was opposed by the hospital. The NLRB also found that the unilaterally included language, that implied that an employee could not avoid union representation during an investigation, was ambiguous and chilled employees’ implementation of NLRA rights. Calif. Nurses Ass’n (Henry Mayo Newhall Mem. Hosp.)
The U.S. Court of Appeals for the Sixth Circuit held that it did not have subject mater jurisdiction over a collective bargaining dispute. The court held that the NLRB has exclusive jurisdiction over DiPonio Construction Co.’s claim against Bricklayers and Allied Craftworkers Local 9 for refusing to bargain. The Sixth Circuit held that courts must defer to the NLRB when a claim is under the NLRA Sections 7 or 8 and is “primarily representational.” It then found that the dispute between DiPonio and Bricklayers to be primarily representational under the NLRA, precluding the court from having jurisdiction over the matter unless the issues before the NLRB and the court are different or if the NLRB declines to decide an issue and defers to the court. The Sixth Circuit upheld sanctions imposed by the district court pursuant to Federal Rule of Civil Procedure 11 on the grounds that DiPonio’s claims were not properly supported by law or fact. DiPonio Constr. Co. v. BAC Local 9.
The Alaska Supreme Court held that the Alaska Public Employment Relations Act (“PERA”) creates an implicit union privilege that enables state employees and union representatives to keep communications relating to discipline and grievances confidential. The court found that without the privilege, the right to union protection would be compromised because conversations with union representatives would not be protectable. In this case, an Alaska State Department worker was terminated after the department determined that the worker failed to include a felony on his job application. He went to the Alaska State Employees Association and communicated information to a non- lawyer union representative about his wrongful termination case. The state subpoenaed the union representative to testify and the state court found that there was no privilege protecting the communications between the non- lawyer union representative and the employee. In determining that communications between employees and union representatives are impliedly privileged under the PERA, it reversed and remanded with instructions to consider a protective order limiting the disclosure of communications. Patterson v. Alaska.
Judge James E. Boasberg of the U.S. District Court for the District of Columbia denied the NLRB’s motion to alter or amend a judgment finding that the recent changes to the NLRB’s representation case rules are invalid and unenforceable because the Board failed to assemble a quorum for its final vote of the changes. See NLRB Election Rule Change Invalid. The NLRB had supported its post-judgment motion with evidence intended to show that NLRB Member Brian E. Hayes (R) was “present and participating” in an electronic voting “room” at the time Chairman Mark Gaston Pearce (D) and then-Member Craig Becker (D) took final action on the rule. However, Judge Boasberg found that: the NLRB simply chose not to rely on the information during the briefing of motions for summary judgment; the Board failed to show that he made a clearly erroneous decision; and the evidence offered by NLRB in its post-judgment motion “would have been useful at the summary judgment stage, but it likely would not have changed the outcome even then.” The court’s opinion noted that the NLRB is not prevented from voting again on the rulemaking proposal with a properly constituted quorum. Chamber of Commerce v. NLRB.
The NRLB ruled 2-1 that an employee summoned by management to receive a disciplinary notice for inaccurate timecard entries had a right to the presence of a union representative once a plant manager began questioning the worker's attitude and unrelated aspects of his performance. Long-standing U.S. Supreme Court precedent in, NLRB v. J. Weingarten Inc., holds that the NLRA guarantees an employee's right to have a union representative present during an “investigatory interview in which the risk of discipline reasonably inheres.” The employer, General Die, argued that the meeting began as a non-investigatory session with the purpose of delivering a warning notice that the company had already decided to issue and was already filled out. The second part of the meeting involved unrelated issues that were not the subject of pending disciplinary action. However, the Board majority found that General Die was required to grant the employee’s request for union representation when disciplinary meeting shifted to discussion of employee “traits” and “problems.” The NLRB found the employee could reasonably have believed the meeting was investigatory and answers to management questions could be used against him. General Die Casters, Inc.
An NLRB ALJ held that a pair of nursing home owners and operators, HealthBridge Management and Care Realty, involved in a strike by New England Health Care Employees Union, District 1199, SEIU represented workers at five facilities in Connecticut violated the NLRA by removing fliers and prohibiting employees from wearing certain stickers. The NLRB had filed several complaints against the companies, including one alleging that the companies refused to bargain in good faith with the union when they unilaterally imposed a new proposal governing wages, hours, benefits, and working conditions without first bargaining to a good-faith impasse. The most recent complaint was issued just three days after approximately 700 union workers walked off the job. The ALJ ruled that HealthBridge violated the NLRA when it prohibited employees from exercising their rights under the NLRA to wear stickers and post fliers indicating that the company had been the subject of an earlier NLRB complaint. The ALJ ordered the company to cease and desist from removing such fliers and prohibiting employees from wearing the stickers, as well as interfering with, restraining, or coercing employees in the exercise of their rights under the NLRA. HealthBridge Mgmt. Inc.
The NLRB ruled 2-1 an Arizona hospital violated NLRA Section 8(a)(1) when it interfered with employee rights by asking employees not to talk to co-workers about internal complaints under the hospital’s investigation. The Board majority found that Banner Health System, prohibited employee discussion of misconduct allegations and that the hospital's “generalized concern” about the integrity of its internal investigations did not outweigh the employees’ NLRA Section 7 rights. Finding the hospital's “blanket approach” of asking for employee silence in every investigation could not be justified, the majority said the hospital practice had a “reasonable tendency to coerce employees” even without a direct or specific threat of disciplinary action. In dissent, Board member Brian E. Hayes found that the requests to limit discussions were devoid of threats and reflected only a “suggestion” rather than a binding rule. Therefore, Hayes found there was “no work rule at all” and no need to consider whether the hospital met its legal burden of demonstrating a business justification for a rule. Banner Health Sys. d/b/a Banner Estrella Med. Ctr.

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Legislation & Politics

Michigan Governor Rick Snyder enacted legislation (S.B. 1085, P.A. 238) allowing companies that sign project labor agreements (“PLAs”) to be awarded contracts and prohibiting contractors from being required to sign PLAs for publicly funded projects. Previous legislation, P.A. 98, banned PLAs on public jobs but was deemed unconstitutional and a violation of the NLRA by a federal judge.
NMB member Elizabeth Dougherty resigned in June after five years on the panel. Dougherty was the only Republican of the three NMB members. Pursuant to the RLA, she must be replaced by a Republican. President Obama has not nominated a replacement, but two NMB members constitute a quorum, which leaves the NMB unaffected.
AFL-CIO has set forth a political campaign strategy centered on its “American Second Bill of Rights” (“ASBR”) derived from the workers’ bill of rights in President Roosevelt’s inaugural address, including the right to be fully employed, right to a living wage, right to full participation on the electoral process, right to quality education, a right to be heard at work, and right to a secure future, among other things. AFL-CIO aims to have the ASBR adopted as platforms by the Democratic and Republican parties. It also aims to increase campaign efforts and educate workers about important issues affecting them.
Republican lawmakers, in response to NLRB decisions that they assert negatively affect workers, proposed three new federal laws: the RAISE Act, the Secret Ballot Protection Act, and the Tribal Labor Sovereignty Act. The RAISE Act, introduced by Rep. Todd Rokita, R-Ind., would modify the NLRA to allow employers to dole out merit-based pay increases to individual employees above those levels set by union contracts. The law currently prohibits employers with unionized workforces from working directly with individual employees to negotiate pay or other employment contract elements that are normally the subject of union collective bargaining. The Secret Ballot Protection Act, introduced by Rep. Phil Roe, R-Tenn., seeks to undo a 2011 NLRB decision which overturned a Bush-era precedent that allowed employees to immediately request a secret ballot election after an employer voluntarily recognizes a union that a majority of employees have signed cards agreeing to join. Finally, the Tribal Labor Sovereignty Act, introduced by Kristi Noem, R-S.D., takes aim at an NLRB decision that found the NLRA applied to Indian tribal government employees working at a casino. The law would remove NLRB coverage and reassert the authority of tribal leaders over tribal affairs.

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Miscellaneous

According to a Wall Street Journal analysis, union spending on politics and lobbying is reportedly growing and is approximately four times more than originally projected. Based on Labor Department and FEC reports, the SEIU is the highest spending union, and, in general, unions that are faced with threats tend to be some of the highest spenders. Comparing political spending patterns of unions and corporations highlights several differences. Among other things, unions reportedly dedicate a greater share of their resources to generate support for the political parties and candidates whereas companies spend a greater share on lobbying. Additionally, unions predominantly support Democrats, while corporations’ donations are relatively evenly split between the Republican and Democrat parties.

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Upcoming Events

August 16, 2012
Winston & Strawn will host an eLunch titled “Employee or Independent Contractor?” on Thursday, August 16, 2012 at 12:15 (Central).
eLunch
August 29. 2012
Jennifer Rappoport and Julie Hall to Speak at PIHRA 2012 Conference & Exposition.
Speaking Engagement
September 12, 2012
Adrienne Scerbak to Present Webinar on Rule 408(b)(2)
Webinar

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Recent Publications

National Labor Relations Board May Review At-Will Employment Statements in Handbooks
Briefing
Illinois Amends Right to Privacy in the Workplace Act to Include Social Media
Briefing

Attorney Advertising Materials

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